Should Your Clients Opt for Trial?

To their clients, lawyers are like soothsayers. Their job is to peer into a crystal ball and predict what is going to happen in court. Lawyers and their clients have to make high-stakes decisions. “Should we take this murder case to trial?” “Will we get more money at trial than the defense is offering us?” “How much alimony will my spouse have to pay?” The scary truth, though, is that lawyers often don’t know.

61% of plaintiffs receive the same amount or less money at trial than they were offered before trial. That means that without even counting all the financial and emotional costs of trial, over 60% of those plaintiffs were wrong. They should have taken the last offer and they would have gotten a better result than at trial. On average plaintiffs in the study received $43,100 less than was offered before trial. Because of attorney-client privilege, it is impossible to know how often those plaintiffs’ lawyers advised their clients to take the offers and stay away from trial, but I suspect that it wasn’t very often.

What could possibly account for such a high error rate? There is growing research that shows that even experts fall into thinking traps called “cognitive biases” that impair their decisions.

A major cognitive bias that probably contributed to all those bad trial outcomes for plaintiffs is the “inside-view of the planning fallacy“. People who fall into this trap focus too much on the specifics of their case and too little on the statistical information that they know applies to similar cases. Nobel Prize laureate Daniel Kahneman has found that people who take an “outside view” when planning are more likely to make accurate predictions because the person making the prediction is less vulnerable to wishful thinking.

Kahneman provides an example of the inside-view of the planning fallacy. Kahneman served on a panel that was developing a textbook. He and the other members of the panel knew a great deal about the other members working on the book and about what they had to do. One year into the project, they estimated how long it would take to complete it and reached a consensus: two years. Then they took a different approach to predicting how long it would take to finish the book. Kahneman asked the Dean of Education to think of similar projects and how long they usually took to finish. He responded, “‘You know I’ve never thought of it, but actually not all of them wrote a book.’ . . . [R]oughly 40 percent of the groups he knew about never finished.” Of those that did finish, he could not “think of any group that finished in less than seven years.” How long did it take the group to finish the book? Eight years.

This is an example of a case where the people on the panel had a lot of information. But the information they had distracted them from the information they should have focused on. They should have fought the tendency to look at all the specifics of their own project and instead used other similar projects as a reference point.

Taking an outside view could be relatively simple in some areas of law practice like personal injury. There are comprehensive databases – including a Lexis product called “What’s It Worth?” – that help lawyers place their case on a continuum of similar cases. But Kahneman’s research shows that even when presented with strong relevant statistical evidence about similar cases, most people will focus on the particulars of their case and ignore or undervalue the statistical information that they have.

Remarkably, though there is statistical information about some practice areas like personal injury, there are no similar statistical products for criminal defense.

Think about that. A criminal defense lawyer has to try to guess the outcome of a trial that might send his client to prison for years, and she can’t even find statistical data about the outcome of similar cases at trial.

Why might personal injury lawyers have access to statistical information that isn’t available to criminal defense lawyers? It might be a sad case of economic incentives. Personal injury lawyers have a strong stake in the outcome of their cases because they usually get paid on a contingency. They receive a percentage of their clients’ recovery. The lawyers might eventually ignore the statistical information, but they want to have all the information they can before they make a decision about going to trial.

Criminal defense lawyers, on the other hand, do not work on contingencies. They do not have to serve a percentage of their clients’ sentences. If they did, I have a feeling that they would pay for a database of statistical information on trial outcomes in similar cases.

At the end of the day, clients have to rely on their lawyers to help them decide if trial is a good idea because they don’t have anyone else they can turn to. While lawyers know more than their clients about the likely outcome of their cases, they should be modest and recognize that an outside view is probably more accurate. Rather than focusing on the specifics of their case, they should try to compare their case to the available statistical information about similar cases. Then, their clients will be able to have more confidence in their predictions and lawyers won’t have to rely so much on magic.

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Josh, thanks for the article. I’d never heard of that stat before on the “61%”.

In doing mostly Personal Injury, I come across this a lot. It really comes down to a financial decision for the client- I often tell mine: you have to decide whether you want to accept the offer and invest the proceeds (if you can) in an investment of your choice or ‘invest’ in the trial. If you choose to invest in the court trial, then you have to be willing to go ‘all in’ and be willing to take the risks. Also, the verdict reporters can be skewed in PI cases because often you are taking the problem cases to trial (i.e., the ones which wouldn’t settle because there was some inherent liability or damages causation problem).

The cognitive bias you mention is also very much a factor. Clients (Plaintiffs and Defendants both – I’ve been on both sides) often think if they just get a chance to ‘tell their story’ to the jury, they will win the jury over. Problem is that they need to understand that: the jury won’t get to hear everything as some things may not be admissible and the jurors may well be sitting there pissed that they are stuck on jury duty and don’t or won’t care.

http://utahcrimlaw.blogspot.com Joshua Baron

Thanks, Dave. I practice more criminal defense. How would you advise criminal defense clients? How can they take an outside view? Are you sold on the idea that taking an outside view could lead to better decisions?

http://attenzalaw.com/ Karen Lundquist

I wonder if some of the advising that lawyers give their clients for not taking a settlement offer before trial does come down to the attorney’s financial stake in the matter. Even if an attorney is working on a contingency basis, like in an employment discrimination case, attorney’s fees are recoverable under the different state and federal statutes. If I take the case to trial, my client might get the same amount, but I can recover my fees separately, not eat into my client’s compensation and get more. The same might be said if the case isn’t being handled on a contingency fee basis and the attorney is being paid hourly. Then there is a lot more incentive to recommend that the client not settle. Maybe I am being cynical though.

Interesting statistics and article in any case.

http://lawyerist.com/author/samglover/ Sam Glover

This is something I always discussed with my clients. Although in my cases, it was sometimes the case that I would make more and the client would make less if we went to trial. I always ran the numbers so the client knew the score and the alternative scenarios.

Victor

Good post. One tactic I use is to interview jurors after a trial and keep data that way, but of course I conduct only 8 to 10 trials per year.

Blake Harrison

Interesting article. I particularly enjoyed the textbook example. I worked on several over the past few years, and can agree that what people believe of themselves and their projects typically differ from reality.

What suggestions (if any) would you have for creating a way to track criminal trial outcomes? If the information is useful (which it most definitely is), should it fall to the firm? Perhaps a way could be found to market the resource in an effort to increase the number of clients, thereby providing a fiscal incentive. Or a professional organization? Or perhaps, due to the lack of directly apparent economic incentives, the state bar should take the helm?

I think another problem (in addition to the lack of financial incentives you highlight–which is a good point) that faces criminal defendants is the nature of their adversary and the system. For instance, how much of the ability to predict outcomes depends on the local judges and prosecutors? Different locales are going to make things tougher or easier depending on the crime, victim, etc., which might affect the kind of deals being offered and force a lawyer into making decisions that the predictors (even if they were available) might advise against.

Pardon my rambling. Very interesting article. I agree that it is a problem that this data does not exist for criminal cases. As a battlefield with much higher stakes, I would like to see a commensurate level of resources and information, which is too often (sadly) not the case.

http://utahcrimlaw.blogspot.com Joshua Baron

Good points, Blake. I hadn’t thought of using collective organizations like the Bar. That might be worth exploring. I worry that the lack of incentives might prevent most lawyers from using the data even if it were available.

Blake Harrison

I tend to agree, but if the State Bar were to take up this task I imagine they could also amend the state’s rules of professional responsibility as well. However, just positing that gives me a headache. :-) Just think of the MPRE and PR exam on the bar–‘special duties of lawyers in criminal defense.’ After all, there are special duties for prosecutors, why not the defense as well? And the costs of legal services continue to go up (and the appeal process is lengthened, etc.). Might not be the best for clients in the long run after all.

This was very eye-opening to someone who is not very familiar with the legal profession. In a way it furthered my distrust for lawyers, but it makes sense. They’re not psychics… well, not all of them.

Jordan Garn

Great article!

Megan

Great article…..way to rock it Baron!

http://www.coyelaw.com/ Wade Coye

A large part of this phenomena in the law cuts to the core of most lawyers personalities. They are competitors who think they can win, or want to think they can win. A fact here or fact there can mean the difference in a trial. Be prudent when approaching the decision to go to trial. A useful technique is to offer counter evidence to your clients perceivable opinion: if it seems like they want to go to trial then offer advice and information on why it might be good to settle and vice versa. This is not meant to dissuade but just to allow for a better evaluation of the facts.

http://utahcrimlaw.blogspot.com Joshua Baron

Those are great ideas, Wade. I think you’re right to emphasize that ultimately it is the client’s choice. If there’s one thing lawyers can do, it is play the devil’s advocate.

Mark Ebbert

Mr. Joshua Baron,

I sense that you’re particularly interested in whether the “inside” or “outside” view is more appropriate when determining whether to take a case to trial. I am not a lawyer and have little legal understanding — and probably even less understanding of cognitive biases, but I wonder whether a combination of “inside” and “outside” views may be more telling than either alone. For example, as a lawyer I suspect (though I don’t know) that you may know if crucial details will be admissible in court. If not, you may be inclined to discourage a trial.